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Simplification of Criminal Law: Kidnapping

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Simplification of Criminal Law: Kidnapping The Law Commission Consultation Paper No 200 SIMPLIFICATION OF CRIMINAL LAW: KIDNAPPING A Consultation Paper ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, David Hertzell, Professor David Ormerod and Frances Patterson QC. The Chief Executive is: Mark Ormerod CB. Address for correspondence: Steel House, 11 Tothill Street, London SW1H 9LJ. Topic of this consultation This consultation paper deals with the offence of kidnapping. A summary of the main points can be found in paras 1.6 to 1.16. Scope of this consultation The purpose of this consultation is to generate responses to our provisional proposals. Geographical scope The contents of this consultation paper refer to the law of England and Wales. Impact assessment An impact assessment is included. Duration of the consultation We invite responses from 27 September 2011 to 27 December 2011. How to respond Send your responses either – By email to: [email protected] OR By post to: Simon Tabbush at the address above Tel: 020-3334-0273 / Fax: 020-3334-0201 If you send your comments by post, it would be helpful if, whenever possible, you could send them to us electronically as well (for example, on CD or by email to the above address, in any commonly used format). After the consultation In the light of the responses we receive, we will decide our final recommendations and we will present them to Parliament. We hope to publish our report in 2014. It will be for Parliament to decide whether to approve any changes to the law. Freedom of information: We will treat all responses as public documents. We may attribute comments and publish a list of respondents’ names. If you wish to submit a confidential response, it is important to read our Freedom of Information Statement on the next page. Availability: You can download this consultation paper and the other documents free of charge from our website at: http://www.lawcom.gov.uk. iii CODE OF PRACTICE ON CONSULTATION THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. CONSULTATION CO-ORDINATOR The Law Commission’s Consultation Co-ordinator is Phil Hodgson. You are invited to send comments to the Consultation Co-ordinator about the extent to which the criteria have been observed and any ways of improving the consultation process. Contact: Phil Hodgson, Consultation Co-ordinator, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ – Email: [email protected] Full details of the Government’s Code of Practice on Consultation are available on the BIS website at http://www.bis.gov.uk/policies/better-regulation/consultation-guidance. Freedom of Information statement Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the access to information regimes (such as the Freedom of Information Act 2000 and the Data Protection Act 1998 (DPA). If you want information that you provide to be treated as confidential, please explain to us why you regard the information as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Law Commission. The Law Commission will process your personal data in accordance with the DPA and in most circumstances this will mean that your personal data will not be disclosed to third parties. iv THE LAW COMMISSION SIMPLIFICATION OF CRIMINAL LAW: KIDNAPPING CONTENTS Paragraph Page PART 1: INTRODUCTION 1 The general aim of the simplification project 1.3 1 Kidnapping 1.6 2 Structure of this paper 1.17 6 PART 2: CURRENT LAW OF KIDNAPPING 7 Introduction 2.1 7 Scale and context 2.1 7 The issues in brief 2.5 8 History 2.6 9 The principal modern cases 2.12 11 Ingredients of the offence 2.17 13 Taking or carrying away 2.18 13 Force or fraud 2.42 19 Without consent 2.59 22 Lawful excuse 2.103 34 Loss of liberty 2.113 37 Sending abroad 2.138 44 The fault element 2.141 44 Kidnapping and false imprisonment 2.151 48 False imprisonment 2.152 48 Relationship between kidnapping and false 2.166 53 imprisonment PART 3: PROBLEMS IN THE LAW OF KIDNAPPING 56 Scheme of this Part 3.1 56 The question of timing: confinement following taking 3.3 56 When must the force or fraud be employed by D? 3.7 57 When must the loss of liberty occur? 3.13 58 Force or fraud and lack of consent 3.15 60 Children and the mentally incapacitated 3.17 60 The requirement of accompanying 3.25 62 v Paragraph Page Summary of the problems 3.33 64 Uncertainty 3.33 64 Over- and under-inclusiveness 3.35 65 PART 4: REFORMING THE OFFENCES 67 Introduction 4.1 67 Scheme of this Part 4.5 67 Elements of the offences 4.6 67 Detention and moving 4.7 68 The resulting harms 4.8 68 Issues common to all provisionally proposed models 4.18 70 Consent 4.18 70 Lawful excuse 4.28 72 Fault 4.33 73 Procedural issues 4.56 79 Models for the offence or offences 4.65 80 Model 1: one offence 4.66 81 Model 2: two offences, detention and abduction 4.77 83 Model 3: two offences, basic and aggravated 4.90 87 The choice 4.107 91 Model 1 4.107 91 Model 2 4.108 91 Model 3 4.109 92 PART 5: QUESTIONS FOR CONSULTATION 93 Consent, force and fraud 5.2 93 Lawful excuse 5.3 93 Fault 5.4 93 Triable either way 5.6 93 Models for the new offence or offences 5.7 93 APPENDIX A: PREVIOUS REFORM PROPOSALS 95 APPENDIX B: THE LAW IN OTHER COUNTRIES 98 APPENDIX C: OTHER ABDUCTION OFFENCES 118 APPENDIX D: IMPACT ASSESSMENT 125 vi PART 1 INTRODUCTION 1.1 In its Tenth Programme the Law Commission embarked on a programme of simplification of the criminal law, criminal evidence and procedure.1 Simplification involves: (1) giving the law a clearer structure; (2) using more modern terminology; (3) making the law in a given area more consistent with other closely allied areas of law; (4) making the law readily comprehensible to ordinary people by ensuring that it embodies sound and sensible concepts of fairness. 1.2 The simplification project has now developed into a rolling scheme reviewing several areas of the criminal law over successive Law Commission programmes. The present review of kidnapping is the second instalment of the criminal law simplification project, the first being the review of public nuisance and outraging public decency.2 Both topics were proposed for review in our Tenth Programme of Law Reform.3 The Eleventh Programme of Law Reform includes a project to simplify misconduct in public office.4 The general aim of the simplification project 1.3 Our simplification project does not primarily aim at codification, although it may involve codification of particular topics or make future codification easier. As explained in the Tenth Programme: The Commission continues to support the objective of codifying the law, and will continue to codify where it can, but considers that it needs to redefine its approach to make codification more achievable. This project is an important component of that redefinition. We believe that simplification of the criminal law is a necessary step in furtherance of its codification.5 1 Tenth Programme of Law Reform (Law Com No 311), para 2.24 and following. 2 “Simplification of Criminal Law: Public Nuisance and Outraging Public Decency”, (2010) Law Com Consultation Paper No 193. 3 Tenth Programme of Law Reform (Law Com No 311), para 2.32 (nuisance) and para 2.33 (kidnapping). 4 Eleventh Programme of Law Reform (Law Com No 330), paras 2.57 to 2.60. 5 Tenth Programme of Law Reform (Law Com No 311), para 2.24. 1 1.4 Simplification might commonly result in seemingly modest legal changes. It may recommend that a common law offence be restated in statutory form, thus achieving partial codification. Otherwise, it will be concerned with removing clear injustices or anomalies.
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